Roy Louis Rodriguez v. James R. Ricketts

CONCLUSION рetition its rehearing, for government claims for the first time that dismissing The Board’s order the com- Lewis waived the severance issue fail- plaint is REVERSED and the is RE- case ing to renew his motion to sever at the MANDED for further close of the evidence. Because the

government question failed tо raise this argument, its brief or at oral we de- cline to address it. remaining

Renumber footnotes accord- ingly. petition

The rehearing for rehearing and en banc has been circulated to the full America, UNITED STATES along panel's with proposed amend- Plaintiff-Appellee, ments herein contained. No member of the court hаs called for an en banc vote. The panel deny request has voted to LEWIS, Gregory Defendant-Appellant. rehearing. petition rehearing The rehearing No. 85-5045. en banc is denied. Appeals, United States Court

Ninth Circuit.

Sept. 1986. FLETCHER, PREGERSON,

Before Judges. Roy RODRIGUEZ, Louis ORDER ‍‌‌‌‌​​‌‌​​‌​​‌‌​​​​‌​‌‌‌​​​‌​​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​‍Petitioner-Appellant, opinion publishеd at 787 F.2d 1318 (9th Cir.1986)is amended as follows: RICKETTS, al., James R. et column, page On first para- second Respondents-Appellees. graph, sentence, agree the second “We No. 84-2102. per inappropriate recognize se rule is danger that the jury’s perception that the Appeals, United States Court of adversely the defendant will be affected Ninth Circuit. by the evidence of the crimes is so Argued April and Submitted 1985. strong as presumption favoring to create a with, severance.” is replaced deleted and 1,May Submission Vacated 1985. per that a inappropri- se rule is Aug. Resubmitted recognize ate but high that there is “a Sept. Decided whenever, risk of undue as in case, joinder this of counts allows evi-

dence of other crimes to be introduced in charges respect trial of to which

the evidence would otherwise be inadmis- Daniels,

sible.” 770 F.2d at 1116. [U.S. Daniels, (D.C.Cir.1985)]. 770 F.2d 1111 page

On column two at the end of partial parаgraph top page at the killing charge.” just ends “... before III,

Part add a new footnote 6: MERRILL,

Before and NOR- RIS, . Judges. Circuit NORRIS, Judge: The Memorandum decision filed on Octo- hereby 1985 is withdrawn. ber age appellant Roy At the Louis Rodriguez charged County was in Yuma aggrava- with murder and Juvenile Court battery. Following juvenile ted represеnt- which counsel, court ordered ed County that he be transferred to Yuma as an Superior Court to be tried adult. No appeal from the transfer order taken. Court, Rodriguez Superior In entered ‍‌‌‌‌​​‌‌​​‌​​‌‌​​​​‌​‌‌‌​​​‌​​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​‍a second-degree counseled deadly weapon. murder and assault with He to serve a term of not was sentenced years less than 45 nor more than 75 Arizona State Prison on the murder count years and not less than 5 nor more than His on the assault count. conviction was upheld on when Arizona Su- claim that his rejected Court intelligently, knowingly guilty plea was not Nunez, made. voluntarily 408, 411-12, 510 P.2d 383-84 (1973). exhausting post-conviction rem-

After courts, state Rodri- edies in the Arizona guez filed in the United States District petition for habeas for Arizona the Court appeal. 28 corpus at issue in this U.S.C. petition challenged his § and sentence on a number conviction including alleged dеfects in his grounds, court and ineffective guilty plea, at of counsel at his assistance appeal. He and on petition, in- court’s dismissal of district voking jurisdiction under this court’s Ariz., Florence, Rodriguez, Roy Louis U.S.C. 1291. § Phoenix, Ariz., Jones, Richard Brent petitioner-appellant. I juvenile trans- Gen., that his Akers, Atty. Wil-

Linda A. Asst. infected a number Schaffer, Phoenix, Ariz., proceedings fer were III, liam J. The district court errors. of constitutional respondents-appellees. ruled that the defects in the alleged Judge trans- We analysis. Muecke’s by his guilty waived were We specifically held in Harris v. Procuni superior Muecke court. rea- er, (9th Cir.) (en banc), F.2d soned: state place, the first that a guilty plea in original jurisdiction court always had adult court waives defects in juvenile a matter, Const., Ariz. felony over this art. hearing. Rodriguez fitness us invites to 6, 14(4); the whether to try decision § light reexamine in Harris of Blаckledge.1 juvenile in superior Petitioner in court or We so decline to do because we court, superior division of which is a alleged Muecke that the deficiencies court, 8-201(14), go does not A.R.S. “to § in Rodriguez’s transfer proceedings not do very power bring the State to thе go “to very power bring the of the State to to defendant into answer court the the defendant into court.” Blackledge, 417 him,” charge brought against Blackledge 30, Moreover, U.S. at 94 at 2103. S.Ct. our 21, 30, 2098, 94 Perry, v. 417 S.Ct. U.S. court has reaffirmed subsequent Harris to (1974) [, 628], 2103 40 L.Ed.2d and thus the holding Court’s Blackledge. in question. jurisdictional does not raise a 728, Eyman, See Saunders v. 600 F.2d 729 law Secondly, supports relevant case the (9th Cir.1977) discussed). (Blackledge not

Magistrate’s analysis, see v. Harris Pro 576, cunier, Cir.) (en 498 F.2d 579 Rodriguez argues that even if Har banc), [, 419 U.S. 970 95 law, ris is still good he should not be 235, (1974); 42 S.Ct. L.Ed.2d Tromb 186] pursuing foreclosed from his constitutional Anderson, F.Supp. 1250, ley v. 439 1252 claims because Arizona law would allow (E.D.Mich.1977), 807, 584 F.2d aff'd, 808 plead guilty forgoing him to without his (6th Cir.1978); see also Federal Habeas right challenge juvenile to the transfer. Corpus Guilty Pleas, in State F.R.D. Rodriguez that, is correct long as the as 235, (1976)(“certifying waiving 301-02 or permits state a constitutional claim sur to juveniles felony over to trial court vive a guilty plea, such claim can re be juvenile ‘irregularities’ find court in viewed in federal habeas See juvenile proceeding by the ceded a subse Newsome, 283, 293, v. Lefkowitz quent ‍‌‌‌‌​​‌‌​​‌​​‌‌​​​​‌​‌‌‌​​​‌​​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​‍felony court”) the plea in adult 886, 891, [sic]. however, unpersuaded, are that under by While sup- cases cited Petitioner in guilty plea superior Arizona law a in court port of theory juvenile the court that does not in juvenile waive defects a trans jurisdictional transfer proceeding in proceeding. Maricopa In re Coun speаk jurisdic- nature do “waiver of a ty, J-73355, Juvenile Action No. Ariz. court, see, by tion” juvenile e.g., the 207, (1973), the Su Arizona 305, 306, [Jiminez], Jimenez 109 Ariz. juvenile Court held that a had who 198, “jurisdic- P.2d that not been right informed a appeal to tion” discretionary stems from a decision transfer delayed seek a appeal, could juvenile judge suspend a to providing prior he did so to the he is time prosecution criminal of children under held to answer in adult court or is indicted. the age eighteen try youth the as 516 P.2d at 582. adult, a as an rather than Const., in juvenile Maricopa County, Like the jurisdiction- It is not art. § al in he was Perry, suрra, the claims not notified of Blackledge right If, sense. appeal as the order.2 (9th Cir.1983) Cleary, It is settled that law in this circuit ... 708 F.2d 1378 n. 2 "[w]here Cos., Inc., (citing Skaggs effectively a has LeVick Court decision under- (9th Cir.1983)). precedent, mined we Ninth Circuit are free to earlier reexamine those casеs to deter- juvenile Maricopa 2. We note unlike in continuing validity.” mine their Heath v. County, Rodriguez represented by counsel holds, alleged attorneys. cannot deficiencies County a of his Hill — Lockhart, U.S.—, he was informed of his v. complain not (1985).5 example, 88 L.Ed.2d For once he to answеr is held guilty plea pursuant court, com- entered he cannot fortiori bargain that assured him that plea.3 he he has plain after entered get the would not penalty. death Rodri argument reject Rodriguez’s Thus we must argues guez also that his counsel at sen guilty plea does Arizona law a under tencing mitigating factors, failed to offer alleged defects a waiver of constitute not suggest single does not mitigating but proceeding.4 Finally, Rodriguez’s in his factor favor. representation of ineffective on ap claim II peal joint representation arises out Rodriguez also that his Sixth lawyer, of him and his uncle one he rights were violated because Amendment any identify potential fails to actual or con coun he denied effective assistance of was joint representation. flict in the plea, sentencing, ap and guilty the sel at proceed pellate stages of the state court Ill on assist ings. To succeed an ineffective argues that also his claim, Rodriguez must of counsel ance plea guilty improperly was counseled ac performance that counsel’s show both First, ceptеd. he that either contends the reason objective fell standards of below sponte court should have held a com sua he and that suffered ableness hearing, petency or that new evidence probability is a because there reasonable competent he was shows that not when he perform for counsel’s deficient pled guilty. disagree. We There was ance, would proceeding result of the the nothing suggesting before the trial have been different. Strickland v. Wash incompetency. only indication of 668, 2052, 687, 466 104 S.Ct. ington, U.S. suggested by Rodriguez new evidence (1984). 2064, 674 80 L.Ed.2d reversal of his conviction on the another ground any charge year need not of later on the decide whether Rodriguez’s prong inadequate finding first there was an for a meets the basis competency he fails to of to stand trial at that time. the test because Striсkland showing any pertaining likeli there was no evidence any that there is Yet new make prejudiced any Rodriguez’s competence at the time of that he was to hood difficulty concluding proceeding. findings. throughout We have no the transfer Possibly, Rodriguez’s guilty counsel decided thеre waived these claimed defects were arguing appeal on no basis for that the plea. transferring judge Rod- abused his discretion in right riguez decide to court. The to ineffective 5. Strickland involved a claim of as however, was, appeal Rodri- to or not whether оf counsel the trial and sistance at guez’s. stages proceeding. of a criminal This circuit already applied two-part test has Strickland’s to courts cites cases in which Arizona See, stages various criminal challenge merits of addressed the a defendant’s 525, States, e.g., 772 F.2d Marrow v. United 529 See, despite e.g., guilty plea. to a transfer (failure (9th 1985) right client of Cir. to advise 1, Thompson, P.2d 925 v. 113 Ariz. 545 guilty plea); Boag 305, appeal Jiminez, a conviction (en banc); after (1976) State v. 109 (fail 1341, (9th Cir.) Raines, cases, however, (1973). 769 F.2d 1344 v. In 509 P.2d 198 those ruling press issue as the ure to issue of absence of rеcorded the court did not address the waiver — denied, County. competency hearing), Court did in Arizona cert. U.S. 860, —, (1986); 106 S.Ct. L.Ed.2d 899 Unit 88 he of his The claim that was not informed 699, Redd, (9th F.2d Cir. ed States appeal most is the transfer 1985) (failure probation to raise issues at hear Rodriguez’s substantial of the claimed defects in 1167, Santos, ing); Guam v. 741 F.2d proceeding. The others are that transfer Cir.1984) curiam) (failure (per to raise issues on hearing incomplete, notice was counsel at the appeal). ineffective, the trans- and specific fer order failed to contain accurate and Second, guilty plea order, this case. Rodri the transfer obviously and it was guez guilty plea require sensible contends that his was ac those to be Alabama, brought Boykin promptly requirement as a cepted in violation of of “the orderly administration Id. 1709, justice.” U.S. L.Ed.2d 274 208, 516 P.2d at 582. (1969). Boykin require But does not rights state court to enumerate all of the ruling Such a does not necessarily pre- long as defendant waives as the record other clude methods of attack on the trans- plea indicates that the was entered volun proceedings, fer however. I conclude that United States tarily understandingly. and permit Arizona would such attacks because Freed, (9th Cir.), its Court has twice done so. In Jiminez, 78 State v. 109 Ariz. 509 P.2d A the Court review the record ‍‌‌‌‌​​‌‌​​‌​​‌‌​​​​‌​‌‌‌​​​‌​​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​‍entertained an attack on Rodriguez voluntarily ap- convinces us that an peal after a in adult understandingly court. entered thе proceeding It found the transfer to have complied with the Boy- that the trial court defective, been but affirmed on another kin requirements. Thompson, State v. ground. (1976) (en banc), the Court IV similarly entertained an on a attack trans- Rodriguez’s complaints regarding his proceeding in аn from a convic- sentence are meritless. There is no record tion in guilty plea. adult court after a support for his claim that the state breach- Court found the attack insufficient on its plea bargain agreement raising ed the merits. While it is true that in both of Moreover, gun. of his usе these cases the by plea issue of waiver of sentencing judge the record shows that the guilty discussed, was not I find it difficult considered all the facts and circumstances to believe Court of Arizo- surrounding the crime as well as Rodri- na would have entertained the if attacks guez’s background, and that the sentence guilty of was a waiver. statutory was within the limits. My normally conclusion would lead me AFFIRMED. issues, into including: several other wheth- Rodriguez er collaterally waived his MERRILL, Judge, concurring: Circuit to attack his proceedings when he Judge I in opinion. concur Norris’ I also failed to dо so on direct from his Judge Canby’s opinion concur in in its re- court; conviction in adult whether ineffec- view, In my Jiminez. liance on we have tive of assistance counsel was involved in perfectly grounds two valid alternative for failure; and whether must be denying the writ. in any shown connection with fаilure counsel. I need not address those and oth- Judge, concurring: issues, however, er because there is anoth- ground upon er I which the district court’s opinion with all of Norris’ petition denial of the should be affirmed. except part which that Ari- concludes It ground upon is the same whiсh the Su- permit Rodriguez zona law would not Jiminez, preme Court of Arizona decided attack hearing plead- his transfer after he supra, namely, appro- that there is now no ed in adult court. It is true that in priate Rodriguez. relief available In re County, Juvenile Action J-73355, No. finding After that Jiminez’ аttack on merit, Court of Arizona held had the Su- juvenile that a would not be allowed to take Court Arizona held: delayed appeal from a court’s jurisdiction of the Juvenile Court [T]he transfer order after he had answered the ceases after an individual has reached his charge ruling, in adult court. That birthday. how- 18th this case defendant ever, only dealt age, with direct Jiminez has attained this defendant doing two months of Killinger is within send them for a back

so. Therefore proper juve- and the process

due gesture would be futile

nile court Court would have lost

for the Juvenile

jurisdiction. 307, 509

Jiminez, Ariz. at P.2d at problem in exists this

Exactly the same

case, far more acute. At the time it is briefing appeal, on this supplemental years old. is no There hearings

way given any further he can be court,

in and it is clear that he is appropriate subject for

not now an processes. The

corrective or rehabilitative equal in adult of retrial

alternative have

ly inappropriate, we held that

there no constitutional defect guilty or conviction thereon. Procunier,

See Harris v. (en banc) (concurring ‍‌‌‌‌​​‌‌​​‌​​‌‌​​​​‌​‌‌‌​​​‌​​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​‍Cir.) opinion of J.),

Browning, (1974). Nor, 42 L.Ed.2d 186 holding,

light would it be at all of our simply to set free.

appropriate in the court’s

I therefore concur district corpus. petition

denial habeas WOMEN VOTERS OF

LEAGUE OF CALIFORNIA, al., et

Plaintiffs-Appellants, Foundation, Henry

Pacifica Plaintiffs, Waxman, COM-

FEDERAL COMMUNICATIONS MISSION, Defendant-Appellee.

No. 83-6299. Appeals, States Court

United

Ninth Circuit. Jan.

Argued and Submitted Sept.

Decided

Case Details

Case Name: Roy Louis Rodriguez v. James R. Ricketts

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 2, 1986

Citation: 798 F.2d 1250

Docket Number: 84-2102

Court Abbreviation: 9th Cir.